Alabama limits eminent domain

By -
The Washington Times -
Thursday, August 4, 2005

Alabama yesterday became the first state to enact new protections against local-government seizure of property allowed under a Supreme Court ruling that has triggered an explosive grass-roots counteroffensive across the country.

Republican Gov. Bob Riley signed a bill that was passed unanimously by a special session of the Alabama Legislature, which would prohibit governments from using their eminent-domain authority to take privately owned properties for the purpose of turning them over to retail, industrial, office or residential developers.

Calling the high court’s June 23 ruling “misguided” and a “threat to all property owners,” Mr. Riley said, “A property rights revolt is sweeping the nation, and Alabama is leading it.”

The backlash against the judicial ruling has not received much attention in the national press, although legislative leaders in more than two dozen states have proposed statutes and/or state constitutional amendments to restrict local governments’ eminent-domain powers.

Besides Alabama, legislation to ban or restrict the use of eminent domain for private development has been introduced in 16 states: California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas.

Legislators have announced plans to introduce eminent-domain bills in seven more states: Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin, and lawmakers in Colorado, Georgia and Virginia plan to act on previously introduced bills.

In addition, public support is being sought for state constitutional prohibitions in several states — Alabama, California, Florida, Michigan, New Jersey and Texas.

In an elaborate signing ceremony in the State Capitol’s historic Old House Chamber, Mr. Riley said, “Alabamians can rest assured that their homes, farms, business and other private property are safe from being seized by government for a shopping center, or a factory, an office building or new residential development.”

The signing immediately won praise from leading property rights advocates who had condemned the ruling and have lobbied state legislatures to block such practices.

“Kudos to Alabama political leaders for taking the first step toward protecting their citizens from eminent-domain abuse,” said Dana Berliner, a senior attorney at the Institute for Justice, a public policy organization that conducted the first nationwide study of abusive property seizures.

The law came in response to a 5-4 decision by the high court that ruled that the Fifth Amendment’s takings clause — “nor shall private property be taken for public use, without just compensation” — did not prevent the city of New London, Conn., from taking Susette Kelo’s property for the expressed purpose of private development in order to gain higher tax revenue.

Although the Alabama law that the governor signed yesterday would prohibit such eminent-domain seizures, it contains an exception that would permit takeovers of blighted properties that could be turned over to private interests — a provision that critics call a loophole for future abuses.

“Alabama’s blight law is particularly prone to abuse and must be reformed,” Ms. Berliner said. “If legislators close the blight loophole, Alabama will be one of the best states in the country for protecting the rights of home and small business owners.”

Jeff Emerson, spokesman for the governor, said yesterday that Mr. Riley would “like to talk to Berliner about this to see how it can be remedied.”

The property rights movement, which had been somewhat moribund before the court acted, has spawned what many political strategists expect to be a major issue in the 2006 election cycle.